Angela Ferreira and Geoffrey Blundell vs. Wits Vuvuzela

Mon, Oct 23, 2017

Ruling by the Press Ombud

22 October 2017

This ruling is based on the written submissions of Ms Kylie Adam of Jurgens Bekker Attorneys, on behalf of Ms Angela Ferreira and Dr Geoffrey Blundell, and those of Prof Franz Krüger, head of Journalism at Wits University, for the Wits Vuvuzela (WV) publication.

Ferreira, a third-year BA-student at Wits, and Blundell, a lecturer at the School of Geography, Archaeology and Environmental Studies at that institution, are complaining about the following articles in the WV:

· Lecturer accused of hanky-panky with student. This article also appeared on the newspaper’s website headlined, Lecturer under investigation for relationship for student (8 September 2017); and

o him a reasonable right of reply – resulting in one-sided, unbalanced reporting;

· story omitted material information regarding the first story (details below);

· first headline was misleading;

· first story wrongly called him a “professor”;

· second article provided a link to the first one – thereby repeating the mistakes / untruths / omissions; and

· WV did not respond to their demands, such as publishing an apology.

THE TEXTS

The first article, written by Karen Mwendera, said a “Wits professor” (Blundell) from the School of Geography, Archaeology and Environmental Studies was under investigation for allegedly having a romantic relationship with a student (Ferreira). This “relationship” reportedly first came to light when some students reported the matter on 4 July 2016 to the science faculty, the Gender Equity Office (FEO) and the Transformation Office.

One of the students who reported the matter told the newspaper that she had also “heard rumours about [the relationship]”. According to this student, there was a hostile atmosphere in the department after the matter had been reported.

The Head of the School, Prof Fethi Ahmed, would not discuss the case, except for saying that the matter “has been dealt with by Wits Legal Office”. He suggested that, as the investigation had not been completed, the newspaper should rather wait for the outcome, or speak to the legal office.

The office of the Vice-Chancellor would also not comment on the investigation, for the same reason.

Mwendera also referred to a report, which had been sent to the newspaper, alleging that Blundell had been involved with Ferreira since June last year, and accusing the pair of “inappropriate behaviour” during a field trip. The report inter alia stated, “[The] rest of the students felt prejudiced in various ways. On several occasions, these students were … left alone in the field for many hours while he and his girl-lover cavorted in far-away love nests…”

It was also alleged that Blundell afforded Ferreira “preferential treatment in class”.

The article ended as follows, “Wits Vuvuzela tried to contact the lecturer numerous times on the phone, and sent him two emails, but he had not responded at the time of going to print.”

Mwendera reported in the second story that Blundell had confirmed the relationship, but said it was declared and cleared with the Gender Equity Office (GEO). “I am in a long-term relationship with a student and it has been interrogated by GEO and subsequently declared under the previous policy,” he reportedly said.

He added, “A team was then provided to undertake this investigation and is expected to report sometime next week, after which the University will make appropriate decisions.”

The journalist apologised for wrongly calling Blundell a “professor” in her first story.

Wits Communications Office reportedly said the investigation into the relationship was still underway.

ARGUMENTS; ANALYSIS

Identified

Ferreira and Blundell complain that the reportage with regard to both stories could easily have identified them, “due to previous incidents relating to the alleged relationship” between the two (which formed the subject matter of the article).

Krüger disputes that Ferreira and Blundell could have been identified – he says their names were not mentioned in the articles, and references were only to a “professor” or a “lecturer” in the School. “There are large numbers of people to which these could refer,” he argues.

He notes that Blundell himself referred to his tenure as head of the Origins Centre, which the newspaper edited out “because this seemed to us to identify him too clearly. In other words, we went further than he himself did in protecting his identity”.

Krüger adds, “We accept that people who may have previous knowledge about the relationship may be able to deduce who the articles refer to. But in that case, any reputational harm was suffered before, and in some cases long before, the article appeared, quite independently of our publication. We submit that people without such prior knowledge would not have been able to identify the complainants. The overwhelming majority of the audience of Wits Vuvuzela – which encompasses the whole university community – would fall into this category.”

Adam argues that neither Ferreira nor Blundell suffered any reputational harm before the publication of the articles, as the relationship had been condoned by the GEO, and thus was not characterized as an “illicit” or “inappropriate” relationship.

She adds it was not necessary for all readers to be able to identify the pair. She notes that Ferreira was easily identified by various students attending class with her, and she was bullied and victimized as a direct result of the false allegations in the reportage.

Krüger replies that he is not saying it is necessary for all readers to be able to identify the complainant. “We are arguing that only people with prior knowledge of the issue would be able to identify the complainants. That may well include people in Ms Ferreira’s class. But our point is that by definition, the report did not tell them anything they may not have already known.”

He also disputes that Ferreira has suffered reputational damage as a result of the article. “To the extent that we reported criticism against the relationship, it was directed at Dr Blundell as the lecturer, not against her. We emphasise that this was criticism from other people, not ours,” he argues.

He says this issue has a long history, and complaints about the relationship predate the article, as demonstrated by the complaints lodged with the university and its inquiry. “Negative reaction cannot be blamed on the articles in Wits Vuvuzela,” he asserts.

Krüger adds WV does not dispute that the relationship has been condoned by the university, which was reflected in the second article (although the university itself was not prepared to confirm that fact on record). “However, that is not the end of the matter. It is clear that the recent university decision to institute an inquiry shows there is concern in some form. That was the focus of the first article, and is uncontested,” he says.

Adam disagrees that the reported was directed at Blundell and not at Ferreira.

She says that, although previous incidents might have occurred regarding to the relationship, the issue has largely been localised within a single department of the university.

She submits that:

· the reportage has assisted in toxifying the environment beyond a single department to the whole university and has caused Ferreira to be victimised by various students; and

· Ferreira was not victimised by students subsequent to the mediation agreement and prior to WV’s reportage on this matter.

She also says that Krüger incorrectly portrays the inquiry as solely focussing on the relationship between Ferreira and Blundell – Wits’s inquiry was explicitly not into their relationship, but “into other matters around field trips”.

Adam also notes WV acknowledges that third parties would be able to identify Ferreira and Blundell. She says, “No persons with prior knowledge of the relationship would have known about the alleged incidents on the field trip, as the statement made by the students in this regard were withdrawn.”

Analysis

The argument is about the question if the reportage could have identified Ferreira and Blundell – Adam says “yes”, Krüger says “no”.

The first consideration of interest is that Adam does not in either of her original complaints motivate why WV should not have identified Ferreira and Blundell.

From later correspondence it appears that the issue was victimisation. The argument seems to be that the reportage has caused such victimisation, and that the reportage was for that reason unethical.

It that is the case, the question should be asked just how valid is an argument that reportage is unethical because it causes victimisation.

Let me state this bluntly, even if it raises some eyebrows: The Press Code is not concerned with reportage causing people harm – on the contrary, in many respects it is the media’s task to do just that. The exposure of guilt usually is in the public interest.

It is the causing of unnecessary harm which should be avoided (as stated in the Preamble to the Press Code).

In this case, there was an inquiry by the university, and it was in the public interest to know that such an inquiry was underway. As in court cases, there is no reason not to identify the people being investigated – as long as the reportage is clear that nobody is guilty until proven so. If in some cases victimisation is a by-product of freedom of expression, so be it.

In other words: It does not matter which of Adam or Krüger is right or wrong, because the real issue lies elsewhere.

No (proper) right of reply

In general: Adam says the gist of the article was the involvement of Ferreira and Blundell in an alleged relationship, which led to preferential treatment towards the former and to disregard, lack of interest and prejudice to other students by the latter.

She emphasises that a right of reply was important, given the serious nature of the allegations made against them – and argues that the failure to do so has resulted in a one-sided, unbalanced story.

Adam states that WV should have verified the allegations, given that the Head of School, Prof Fethi Ahmed, commented that the matter had been dealt with by the Wits Legal Office; besides, Ferreira and Blundell could have provided evidence to demonstrate that compelling reasons existed to doubt the accuracy of the allegations made against them. The complainants were also “in possession of correspondence from the university wherein the alleged relationship was accepted and wherein the university allowed the alleged relationship to continue,” she attests.

Blundell: Adam says Mwendera sent an e-mail to Blundell on September 4, stating she had been working on a story with which he would be able to assist her. She asked to speak with him, either in person or via telephone. She did not state what the story was about.

The reporter followed this up with a list of thirteen questions via e-mail on September 7.

Adam adds that it was clear the first article had already gone to print at the time the journalist sent these questions to Blundell – therefore, she argues, he was not given a reasonable opportunity to comment.

Regarding the second article, Blundell says the reporter did not contact him for comment on Habib’s statement that the preliminary investigation into sexual harassment claims suggested that a further, fuller investigation was required in the Department, that a team had been provided to undertake this investigation, that it was expected to report sometime the following week, and that the University would make appropriate decisions then.

Ferreira: Adam says Ferreira was in possession of statements by the students who were claimed to be prejudiced during the field trip. In these they retracted their previous claims and undertook to desist from harassing her or, alternatively, enlisting the help of other persons in such actions against her.

However, the journalist made no effort to contact her for comment for either of the articles.

Krüger says the first article was mainly concerned about recording that university authorities have instituted an inquiry into a romantic relationship between a staff member and a student. The university’s communications office confirmed the investigation, as did the head of the school in question.

The article also quoted a student who was “sufficiently concerned at the relationship” to join others in a collective complaint with the GEO.

Blundell: Krüger says Mwendera made initial efforts to get in touch with Blundell via an e-mail on September 4. She followed this up with several attempts to reach him via his office phone, but was not able to get a response. She then sent him another e-mail during the morning of the 7th, to which he replied by asking for specific questions. She sent those through, and he responded with a brief statement. “Unfortunately, this response was too late for publication. However, the initial report recorded these attempts, and the online version said a follow-up story would be published when the response was received,” he explains.

The reporter e-mailed some more questions for further clarification, but did not receive a response to these. WV published his initial response in the online follow-up story, as promised, on September 19.

Krüger argues that “[the] the efforts made before the first story was published were sufficient to make publication reasonable. When his response became available, that was published.”

Regarding the follow-up article, Krüger argues that Habib’s comment did not amount to critical reporting to which Blundell was entitled to respond as it did not constitute an accusation that he was guilty.

He says that Blundell previously responded to requests for comment by saying he could only respond to personal questions, and referred questions about the inquiry to the Wits legal office. “There was no reason to believe he would have changed his position. Nevertheless, if he is concerned about the matter, we are again happy to carry a response from him,” he adds.

Ferreira: Krüger says the reporter attempted to obtain contact details for Ferreira, which she was unable to do. Attempts to find her on social media did not succeed either. He says the Press Code recognises that practical reasons may sometimes make it impossible to get a response.

He argues, “We would have liked to include her response, but felt that its absence was not sufficiently serious to make it impossible to run the story. The key elements of the story were confirmed. Also, any criticism implied in the other students’ account was directed at Dr Blundell, as the responsible lecturer, rather than at her. In that sense, we do not believe that she was the subject of critical coverage, as the press code puts it.”

He emphasises that, if Ferreira wants to have her account and response recorded, WV is happy to give her that opportunity.

Adam submits that Mwendera did not at any point request Ferreira’s contact details from Blundell. She also submits it is well known by all students and staff attending the university that Wits has a generic email system, whereby each student is allocated a personal university e-mail address, compiled as follows: name.surname@students.wits.ac.za “Ferreira could therefore have easily been contacted for comment,” she argues.

Krüger reiterates that the journalist took reasonable steps to reach Ferreira in the time available, He adds, “Of course, there will always be something more that one could do to locate somebody.”

As for the generic Wits e-mail, he says:

· WV’s understanding is that it relied on student numbers, not names;

· An inquiry this week to Wits ICT shows that there is a version using names, but they “cannot guarantee” it; and

· The version with names is unknown to the students, who tend to rely on private email addresses. He says, “When I asked, none of the students I spoke to were aware of this possibility. In any event, the university addresses are mainly used for official university communication. It was thus not an obvious avenue to try.”

In any event, WV did not view Ferreira as the subject of critical reportage. “Therefore while obtaining her comment was desirable, in our view, it was not essential,” he argues, adding that the offer to carry her response stands.

Adam reiterates that the reporter did not take reasonable steps to obtain comment from Ferreira. The approach to Wits ITC was clearly ad hoc “and was only undertaken this week” – after publication, that is.

Analysis

Blundell: With regard to the first article, I am satisfied that Mwendera did fulfil her obligation to contact him prior to publication, as is evidenced from her e-mail on September 4 (well in advance of publication), as well as from her further efforts. I also have no reason to disbelieve Krüger’s testimony that the reporter tried to reach Blundell via telephone.

The reporter followed up her efforts on September 7 via e-mail with relevant questions, asking him:

· what classes he lectured;

· for his response to allegations about a romantic / illicit relationship with Ferreira;

· why he thought these allegations might have surfaced;

· for his response to a report that he and Ferreira had indulged in “inappropriate behaviour” during a field trip the previous year, which left students feeling “prejudiced in various ways”;

· if he was aware that some of his students had allegedly reported this “relationship” in July 2016 – and if he was, what his response was to that;

· if he was aware of the possibility that Wits was investigating these allegations – and if so, how and when did he find out, and also how he responded to that;

· what the status was of that investigation, and if the university had instituted any disciplinary action against him;

· if he was still lecturing in the department;

· if he was aware that the report was given to Wits Vuvuzela and other media houses, and also sent to the Minister of Human Settlements, Ms Lindiwe Sisulu; and

· what his response was regarding the allegation that he had been involved in another student-staff relationship and that this had negatively influenced relations among members of staff and had also resulted in his divorce.

Given all of the above, I am satisfied that the journalist fulfilled her obligation towards Blundell. The fact that his response was received too late was unfortunate, yes – but WV did the right thing in stating that to be the case, and that his response would follow in its next edition. That was also in accordance with Section 1.8 of the Press Code.

Regarding the second story, I agree with Krüger that Habib’s comment did not amount to critical reporting, to which Blundell was entitled to respond (as it did not constitute an accusation that he was guilty). I also agree with his argument that the lecturer has previously indicated that he could only respond to personal questions – and that there was no reason to believe he would have changed his position.

I note, with appreciation, that this story repeated the statement that Blundell’s response had been received too late for publication in the first story.

Ferreira: The question is whether Ferreira was the subject of critical reportage, in which case she should have been contacted for comment – Krüger says “no”; Adam says “yes”.

“Critical reportage” can be defined in various ways, but it boils down to reportage which has the potential of causing someone harm – whether necessary, or unnecessary.

Let me therefore take a look at what the first story had to say about Ferreira (whether she was identified by everybody, or only by a few, is not relevant in this regard). This article inter alia stated, whether as fact or as allegation, that:

· she had been involved in a romantic relationship with a lecturer;

· this issue had been reported to various institutions at Wits;

· the relationship had caused serious tension in the Department;

· she was involved in “inappropriate behaviour”; and

· she had received preferential treatment.

This, to my belief, constituted “critical reportage”, as it had the potential to harm her.

I accept Krüger’s assertion that Mwendera attempted to obtain contact details for Ferreira (even though WV did not think that the story would constitute critical reportage of her). However, I am not convinced that the reporter went to enough trouble to locate Ferreira. In any event, the journalist should at least have reported the failure of attempts to contact Ferreira – as she did with Blundell in the first story.

The journalist had the opportunity to rectify this neglect in her second article, but again she failed to comply (even though this story did not mention Ferreira, the issue was about her as well).

I am not convinced at all that Mwendera took Ferreira seriously enough.

Material omissions

Adam says the journalist neglected to report the following material aspects in the first story:

· The students who complained retracted their claims (on or about 14 December 2016);

· The allegation of preferential treatment was found to be false after Ferreira’s marks were independently assessed; and

· Ferreira and Blundell declared their relationship to the GEO of the university; the relationship was afterwards accepted and allowed to continue.

Krüger says WV has no knowledge to the effect that students who initially complained of inappropriate conduct have withdrawn those statements. He submits, “When the reporter spoke to one of them in the week the article appeared, on or about September 5, she spoke freely about the issue and did not indicate that the claims no longer stood.”

He also argues, “If students withdrew statements on the issue and have now reneged on that undertaking, this is between them and the complainants, and does not involve Wits Vuvuzela.”

Krüger maintains that the university has instituted an inquiry into the matter recently and says that the matter has not yet been resolved.

He says the newspaper accepts the existence of correspondence from the GEO recognising that the relationship complied with the new policy on romantic relationships between staff and students. Even though the GEO has a policy of strict confidentiality, the newspaper did publish Blundell’s statement to this effect in the follow-up report.

Adam replies that the withdrawal of the claims took place between the students and Ferreira – had the latter been contacted, the WV would have been able to establish this fact and the allegations would have been confirmed as false, she says.

Krüger says that in his response to a request for comment, Blundell made no mention of any withdrawal of accusations. “If this was so important, he could easily have done so,” he argues.

He also says that WV contacted the legal office for comment, but it referred inquiries to the university’s communications office, whose response was recorded.

He adds, “We do not see assertions in the lawyers’ letters as proof that our report was false, and did not understand them to be intended for publication. If they are, we would be happy to quote them.”

Analysis

Students having retracted their statements: Krüger says WV has no knowledge that students who initially complained of inappropriate conduct have withdrawn those statements.

However, on 11 September 2017, Adam wrote to WV: “[The] allegations contained in the unlawful publications in respect of the incidents occurring on the field trip, has (sic) been confirmed to be false by the students who attended same with [Ferreira and Blundell]. We further bring to your attention that the aforementioned students have entered into an agreement with … Ferreira … in terms whereof they retracted the false allegations and statements made, and agreed to desist from harassing [her] or alternatively enlisting the help of other persons from engaging in harassment of [her].”

On September 13 Mwendera, via e-mail, acknowledged receipt of this message. She added, “I have notified my editor and we will sure (sic) that actions will be made (sic) immediately.”

I take into account that the journalist did not know about this when writing her first story. However, she did know about this prior to the publication of the follow-up article (on September 19) – and she even promised to take some “action” in this regard.

Sadly, and unfairly so, nothing came of this promise in the second article. Having reported on this issue in its first story, WV was obligated to report this new information, which was relevant and material. Section 1.9 of the Press Code is clear about this – once new information becomes available, the reportage should be supplemented. (This section appears immediately after the one addressing “critical reportage”, and should be interpreted in that context.)

Allegation of preferential treatment found to be false: I have no evidence that WV has been supplied with information to this effect. If such documentation exists, I urge Adam to provide WV with such for publication.

The GEO: The second story quoted Blundell as saying that his relationship with Ferreira had been declared and cleared with the GEO. Although it would have been better if WV reported that the GEO itself made this statement, instead of merely quoting Blundell on this issue (the journalist also had this information at her disposal), I am satisfied that this reportage has settled this particular matter.

It is unclear what Krüger means by the following statement: “We do not see assertions in the lawyers’ letters as proof that our report was false, and did not understand them to be intended for publication. If they are, we would be happy to quote them.” (Emphasis added.)

I would be surprised if he refers to the students’ alleged withdrawal of their statements, or to the assertion that the allegation of preferential treatment had been found to be false – as surely, these issues were newsworthy.

Headline

Ferreira and Blundell complain the headline in the print version (Lecturer accused of hanky-panky with student) implied that the relationship was of an exclusively sexual nature and that it was a quid pro quo (a favour for a favour) affair.

Adam also argues that the use of the word “accused” implied potential wrongdoing, while the pair had been acquitted of such.

Krüger rejects the argument that the headline embellished the true state of affairs, and says it is unclear what exactly they were reading into it. He also defends the use of the word “accused”, as it accurately described what WV’s student source had to say.

Analysis

Given the information available to WV at the time, I am satisfied that it was an accurate reflection of the content of the story, and also not unfair – it was true that Blundell was under investigation for allegedly having an affair with a student, and that the investigation had not been completed at the time of publication.

‘Professor’

Blundell complains that the first story incorrectly called him “professor”.

Krüger admits that the initial report mistakenly referred to Blundell as a professor. However, “When we became aware of the error, it was corrected in the follow-up article, and an apology was made.”

Analysis

I accept that the reference in question was incorrect, and also that the matter has been resolved.

Link to first article

Adam says the link to the first article provided at the second story merely repeated the mistakes / untruths / omissions of the original text.

Krüger rejects the argument that the link between the second and first article meant that the same mistakes and untruths were repeated. He argues, “Making the link is responsible journalism, in that it ensures that the context is clear, and that anybody coming across the material is sure to see Dr Blundell’s response.”

Analysis

In my arguments and findings above I have not found anything to be false or untrue in the first story. Adam’s reference to a court case is also not applicable in this instance, as it concerned the re-publishing of an article in another publication (not the same). Krüger is correct: It was indeed responsible journalism in that it provided the context by linking the one article to the other.

Not responding to demands

Adam says WV was unresponsive to their complaints, which included a demand to publish an apology.

Krüger denies that WV took too long to respond.

Analysis

I have not given detailed attention to this part of the complaint, as it falls outside my mandate; I can only deal with matters which were published.

General remark

Nobody has mentioned the following sentence in the first article, but I need to do so: “One of the students who reported the matter … told Wits Vuvuzela that, “I had also heard rumours about [the relationship]. We then spoke to her … casually because we didn’t feel comfortable.”

From my understanding, the students who “reported” the matter were the ones who “witnessed” events on the field trip. Clearly, this student did not witness anything, as she acted on “rumours” she said she had heard.

That, in my book, is called hearsay – which makes the reportage of this matter worrisome.

FINDING

Identified

This part of the complaint is dismissed.

No (proper) right of reply

Blundell: The complaint regarding both articles is dismissed.

Ferreira: WV was in breach of Section 1.8 of the Press Code which states, “The media shall seek the views of the subject of critical reportage in advance of publication… If the media are unable to obtain such comment, this shall be reported.”

Material omissions

Students having retracted their statements: WV should have reported this information in its second article, even if it only reported this as an allegation and not as fact. The failure to do so was in breach of the following sections of the Press Code:

· 1.1: “The media shall take care to report news … fairly”;

· 1.2: “News shall be presented in context and in a balanced manner, without any intentional or negligent departure from the facts whether by … material omissions…”; and

· 1.9: “…the reports should be supplemented once new information becomes available”.

The complaint regarding the first article is dismissed.

Allegation of preferential treatment found to be false: As I have no evidence to this effect, there is no finding on this issue.

The GEO: The complaint regarding both articles is dismissed.

Headline

This part of the complaint is dismissed.

‘Professor’

The reference to Blundell as a “professor” in the first story was in breach of Section 1.1 of the Press Code that states, “The media shall take care to report news … accurately …”

Link to first article

This part of the complaint is dismissed.

Not responding to demands

This part of the complaint is dismissed.

SERIOUSNESS OF BREACHES

Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).

The breaches of the Press Code as indicated above are all Tier 2 offences, except for the one relating to calling Blundell a “professor” – that is a Tier 1 offence.

SANCTION

Wits Vuvuzela is directed to:

· apologise, both in print and online, to Ferreira:

o for not having asked her for comment with regard to both articles;

o and Blundell for omitting to report Adam’s assurance that the students who complained have retracted their statements; and

· ask Ferreira for comment and include such comment in the apology, if indeed she still wants to exercise her right to reply.

There is no sanction with regard to the incorrect reference to Blundell, as a “professor" as this matter has already been dealt with satisfactorily.

The newspaper is requested to publish the text:

· on the same page as the offending story; and

· online, with a link to the reportage.

The headline should contain the word “apology” or “apologises”.

The text should:

· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed;

The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He can be contacted at Khanyim@ombudsman.org.za.